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Volokh Conspiracy

Same-sex marriage showdown in the Fifth Circuit on Friday


On Friday, the Fifth Circuit will hear oral argument in three cases challenging bans on same-sex marriage, one each from Texas, Mississippi, and Louisiana. The judges on the panel are Patrick Higginbotham (appointed by President Reagan), Jerry Smith (Reagan), and James Graves (Obama). Lower court judges in the Texas and Mississippi cases overturned the state bans, although the decisions were stayed. The Louisiana district court judge was one of the few in the country since United States v. Windsor to uphold the state's marriage exclusion.

A team of lawyers from Paul Weiss led by Robbie Kaplan (who won Windsor) is in charge of the Mississippi case, Campaign for Southern Equality v. Bryant. I'm assisting on that one. Our brief is available here.

The Texas case, DeLeon v. Perry, is headed up by the very formidable Neel Lane of Akin Gump. Lambda Legal is handling the Louisiana case, Robicheaux v. Caldwell.

The Fifth Circuit has announced special rules for those who want to attend the oral argument in New Orleans, including a procedure under which audience members will be shuffled out at the conclusion of each case so that new people can be brought in. The court has allotted a total of three hours for the argument, starting at 9 a.m. (Central). An audio recording will be available on the Fifth Circuit's website one hour after conclusion of all of the arguments.

Coincidentally, also on Friday the Supreme Court will consider cert petitions regarding same-sex marriage. An announcement about those petitions could come as early as Monday.